Veteranclaims’s Blog

December 16, 2018

Fee Agreements and the Rapid Appeals Modernization Program; VAOPGCPREC 1-2018;August 6, 2018;

Date: August 6, 2018
Department of Veterans Affairs
From: General Counsel (022)
subj: Fee Agreements and the Rapid Appeals Modernization Program

To: Director, Appeals Management Office, Veterans Benefits Administration (397)
How does a claimant’s opt-in to the Rapid Appeals Modernization Program
(RAMP) affect an existing fee agreement?
If a claimant, who is represented by a claims agent or attorney, withdraws his or
her notice of disagreement (NOD) to opt-in to RAMP, that withdrawal does not
obstruct the representative’s eligibility for fees. The Department of Veterans
Affairs (VA) does not construe the RAMP election as returning the claimant and
representative to a period in the VA administrative process for which fees may
not be charged or as otherwise affecting a legal existing fee agreement.
1. RAMP is a VA initiative testing the feasibility and advisability of facets of the
new statutory appeals process prior to full implementation. See Veterans
Appeals Improvement and Modernization Act of 2017, Pub. L. No. 115-55, §§
4(a), 6(3). According to Appeals Management Office (AMO) Policy Letter (PL)
18-01, to participate in RAMP, a claimant must (1) have already filed a notice of
disagreement and (2) submit a written RAMP opt-in election to VA. PL 18-01 , at
2-3. RAMP opt-in involves “withdrawing his or her pending eligible compensation
appeal(s) and substituting the review options set forth in Public Law 115-55.” Id.
at 3. The RAMP election form sent to thousands of claimants requires the
claimant to affirm that “I am withdrawing all eligible pending compensation
appeals in their entirety . .. to participate in VA’s RAMP initiative and have my
eligible appeals proceed under the new process described in the Appeals
Modernization Act.”
2. Because current law prohibits a fee from being charged for services provided
by an attorney or claims agent “before the date on which [an NOD] is filed with
respect to the case,” 38 U.S.C. § 5904(c)(1) (2017), the AMO wants to confirm
that VA’s position-that “withdrawing” an appeal for purposes of a RAMP election
will not return the claimant and representative to the “pre-NOD” period in which a
fee may not be charged-is not in conflict with the law. For the reasons
discussed below, we believe that the law supports VA’s position; the “withdrawal”
of an appeal in a RAMP election is solely for the purpose of entering the new
Director, Appeals Management Office, Veterans Benefits Administration (397)
appeals process, as noted in both the AMO’s Policy Letter and the RAMP
election form.
3. First, the new appeals process will permit a fee to be charged for services
provided by an attorney or claims agent after “a claimant is provided notice of the
agency of original jurisdiction’s initial decision”-a circumstance that is met for all
RAMP participants. Pub. L. No. 115-55, § 2(n) (revising 38 U.S.C. § 5904(c)(1 )).
If a RAMP participant’s existing fee agreement conforms with current 38 U.S.C.
§ 5904(c)(1 ), it will necessarily conform with Public Law 115-55’s revis ion of that
section, such that a claimant’s opt-in to the new appeals process, and the laws
that govern it, will not return the claimant and representative to any period in
which a fee may not be charged. Although the revision of section 5904(c)(1) is
not currently effective, it provides strong evidence that Congress did not intend
participation in the modernized appeals system to have any restrictive, much less
preclusive, effect on eligibility for attorney fees. It is, therefore, reasonable to
conclude that, in authorizing a testing program under section 4(a) of Public Law
115-55, Congress did not intend such program to defeat existing eligibility for
attorney fees.
4. Second, both the AMO’s Policy Letter and the RAMP election form are clear
that RAMP opt-in is not a pure appeal “withdrawal,” but a substitution of one
appeals process for another. Because Congress has permitted, since 2006, fees
to be charged for services once the appeals process is initiated, see 38 U.S.C.
§ 5904(c)(1) (2017); Pub. L. 109-461 , tit. I, § 101(c)(1) (2006); see also 38 U.S.C.
§ 7105(a) (2017), the substitution of appeals processes after initiation would not
raise any section 5904(c)(1) concerns. In fact, any interpretation of RAMP
election that would cause claims agents and attorneys to discourage claimants
from opting in to the new appeals process-based on concerns that a RAMP
election will adversely affect their own fees-would defeat Congress’s specific
intent to provide various opportunities for opting in to the new appeals process,
see Pub. L. No. 115-55, §§ 2(x)(3}, 2(x)(5}, 4(a}, 6(3), not to mention create
conflicts of interest for attorneys and claims agents in numerous cases.
5. Third, claimants and representatives entered into their existing fee
agreements with the understanding-since the NODs had already been filedthat
there would be a payment for services provided; the technicalities required
for RAMP election should not disrupt that settled expectation. See Landgraf v.
US/ Film Prods., 511 U.S. 244, 265 (1994) (“Elementary considerations of
fairness dictate that individuals should have an opportunity to know what the law
is and to conform their conduct accordingly; settled expectations should not be
lightly disrupted.”); Cline v. Shinseki, 26 Vet. App. 18, 26-27 (2012). As noted
above, there is ample reason to conclude that Congress intended not to disrupt
such settled expectations in enacting the provisions of Public Law 115-55,
including those authorizing a test program such as RAMP. To the extent fee
Director, Appeals Management Office, Veterans Benefits Administration (397)
agreements in particular cases do not explicitly address RAMP, such agreements
nonetheless would most logically be construed to apply to election of RAMP in
the same manner as they would apply to traditional appeals. Courts have
previously examined the context of veterans’ benefits fee agreements to find
implicit provisions therein, see, e.g., Scates v. Principi, 282 F.3d 1362, 1365
(Fed. Cir. 2002), and we see no reason why a court would disrupt settled
expectations between a claimant and representative based on an isolated focus
on the word “withdrawal” on the RAMP election form .
James M. Byrne

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